COURT FILE NO.: 1912/16
DATE: 20180619
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Kevin Booth
Defendant
Melanie Nancekievill, for the Crown
Sarah Donohue, for the Defendant
HEARD: September 27, 28, 29 and October 2, 2017, Mar 6 & May 24 2018
Justice R. Raikes
[1] Mr. Booth was convicted at trial of the following charges:
- Assault causing bodily harm to Jesse Graham
- Simple assault of Joshua McRae (guilty plea)
- Two counts of dangerous driving causing bodily harm to Chase McRae and Dylan McMichael, respectively
- Mischief less than $5,000.
[2] The Crown seeks a global sentence of 27 months incarceration together with ancillary orders. The Crown submits that Mr. Booth should serve: 60 days for assault causing bodily harm, less credit for 6 days enhanced time for pretrial custody, a consecutive period of incarceration of 30 days for the simple assault charge, two years for the dangerous driving convictions consecutive to the assault charges, and 15 days for the mischief charge to be served concurrent to the dangerous driving sentence.
[3] Defence counsel urges me to impose a 90 day intermittent sentence for each of the two convictions for dangerous driving to be served concurrently, and a suspended sentence and probation for the other three offences. She submits that a two year driving prohibition and ancillary orders in addition are appropriate.
[4] As is evident, there is a significant disparity in the final positions taken by counsel. They agree on which sentencing principles are engaged but differ on the emphasis to be placed on those principles.
[5] It is helpful to set out the sentencing principles that apply in this case at the outset.
Sentencing Principles
[6] The fundamental purpose and objectives of sentencing are set out in s. 718 of the Code.
[7] The fundamental purpose of sentencing is to protect society, and to contribute to a just, peaceful and safe society by imposing just sanctions.
[8] The enumerated objectives are denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, making reparations, and promotion of a sense of responsibility in the offender.
[9] Section 718.1 provides that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. This is referred to as the proportionality principle. This principle requires that full consideration be given to both the gravity of the offence and the moral blameworthiness of the offender: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61. In simple terms, the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089.
[10] Section 718.2 sets out other factors that a court must take into account in determining an appropriate sentence. Subsection (a) indicates that a sentence should be increased or reduced to account for any aggravating or mitigating factors relating to the offence or offender, and sets out a non-exhaustive list of facts that, if present, constitute aggravating circumstances. These include evidence that the offence had a significant impact on the victim which includes on his or her health and financial situation.
[11] The balance of s. 718.2 requires the court to ensure that:
- A sentence should be similar to sentences imposed on similar offenders for similar offences in similar circumstances.
- Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh.
- An offender should not be deprived of liberty if less restrictive sanctions are appropriate